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December 15, 2008, Alert No. 1,873.
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Google and Network Neutrality Proponents Defend Edge Caching and Colocation Agreements

12/15. Google and certain network neutrality proponents criticized a Wall Street Journal article titled "Google Wants Its Own Fast Track on the Web".

The debate centers on what is meant by undefined terms such as "network neutrality" and "fast lane". The main issue is whether agreements between broadband service providers, such as cable and phone companies, and internet content companies, such as Google and Amazon, to cache the content of these internet companies, including through colocating servers in the facilities of the service providers, is consistent with principles of network neutrality.

Google, its supporters, and certain network neutrality proponents have sought the imposition of network neutrality mandates, by legislation, Federal Communications Commission (FCC) regulation, and application of antitrust laws. These same entities now also argue that they do not violate traditional notions of network neutrality by striking agreements with service providers for edge caching and colocation. The WSJ article challenges this interpretation.

The WSJ published the article in its print and web editions on December 15, 2008. The authors are Vishesh Kumar and Christopher Rhoads.

The article states that Google "has approached major cable and phone companies that carry Internet traffic with a proposal to create a fast lane for its own content".

The article elaborates that "Google's proposed arrangement with network providers, internally called OpenEdge, would place Google servers directly within the network of the service providers ... The setup would accelerate Google's service for users. Google has asked the providers it has approached not to talk about the idea ..."

It adds that "One major cable operator in talks with Google says it has been reluctant so far to strike a deal because of concern it might violate Federal Communications Commission guidelines on network neutrality."

See, FCC's August 1, 2008, order [67 pages in PDF], and story titled "FCC Asserts Authority to Regulate Network Management Practices" in TLJ Daily E-Mail Alert No. 1,805, August 4, 2008. See also, FCC policy statement [3 pages in PDF] of August, 2005, and stories titled "FCC Adopts a Policy Statement Regarding Network Neutrality" in TLJ Daily E-Mail Alert No. 1,190, August 8, 2005, and "FCC Releases Policy Statement Regarding Internet Regulation" in TLJ Daily E-Mail Alert No. 1,221, September 26, 2005.

The WSJ article also comments that "If companies like Google succeed in negotiating preferential treatment, the Internet could become a place where wealthy companies get faster and easier access to the Web than less affluent ones".

It also asserts that Lawrence Lessig (Stanford Law School), "an influential proponent of network neutrality, recently shifted gears by saying at a conference that content providers should be able to pay for faster service". It also asserts that President elect Obama's position has changed.

Google and certain participants in the network neutrality debate are not pleased with the WSJ article.

Lessig wrote an essay in response in his personal web site titled "The made-up dramas of the Wall Street Journal". He wrote that "My view is the view I have always had". He reviewed and hyperlinked to some of his recent speeches and Congressional testimony.

He also wrote that "The article is an indirect effort to gin up a drama about a drama about an alleged shift in Obama's policies about network neutrality." But, "I've not seen anything during the Obama campaign or from the transition to indicate it has shifted its view about network neutrality at all."

Rick Whitt, Google's Washington Telecom and Media Counsel, wrote a piece in the Google web site that asserts that "Google remains strongly committed to the principle of net neutrality" and "President-elect Obama's supportive stance on network neutrality hasn't changed at all".

He argued that what Google is doing is edge caching, or the "temporary storage of frequently accessed data on servers that are located close to end users", and that this does not violate the concept of network neutrality.

He added that "All of Google's colocation agreements with ISPs ... are non-exclusive, meaning any other entity could employ similar arrangements. Also, none of them require (or encourage) that Google traffic be treated with higher priority than other traffic. In contrast, if broadband providers were to leverage their unilateral control over consumers' connections and offer colocation or caching services in an anti-competitive fashion, that would threaten the open Internet and the innovation it enables." (Parentheses in original.)

Ed Black, head of the Computer & Communications Industry Association (CCIA) wrote that the WSJ article "contained several mistakes".

He wrote in a statement that the WSJ article is wrong in stating that "President-elect Obama, Professor Lawrence Lessig and Google have recently changed their positions" on network neutrality, and in equating beneficial caching services with broadband discrimination.

Black wrote that "The article also accuses Google of somehow violating its commitment to net neutrality by simply discussing nonexclusive tiered pricing and edge caching with network operators. Neither Google nor Lessig have ever called for a prohibition on tiered pricing per se -- letting Internet providers charge more for faster service -- as long as they offer the same deal to everyone else willing to pay more, although there are legitimate questions to be asked about some configurations of such schemes. So they have not changed their stance as the article suggests. From all that we've seen, Obama, Lessig and other tech companies' commitment to prevent discrimination on the Internet remains as strong as ever."

Black also addressed the state of competition among broadband service providers, a topic not addressed in the WSJ article. He wrote that "The fundamental driver of the push for reinstituting formal net neutrality rules is the lack of meaningful competition in the key markets."

He said that network neutrality rules would not be necessary "if the natural play of dynamic market forces existed and could be counted on to discipline abusive anti-competitive behavior." Rules are necessary, said Black, because of "the lack of meaningful high speed broadband competition which would let consumers vote for net neutrality by changing Internet services providers."

Markham Erickson, head of the Open Internet Coalition, stated in a release that the WSJ article is a "fundamentally inaccurate portrayal of the current Net Neutrality debate".

He argued that it "confuses two separate issues: the arbitrary manipulation of and discrimination against certain kinds of traffic travelling across Internet networks, and the ability of cable and telephone company operators to deploy network upgrades, such as edge caching of content. Discrimination has been prohibited by the FCC and opposed by the Open Internet Coalition and its members."

"Edge caching by companies such as Akamai, Limelight, and our member company Amazon has been implemented for many years, and is an accepted, legal and beneficial step by network operators to improve access of content by consumers. It does not involve the prioritization or degradation of Internet traffic."

He added that "Edge caching is designed to reduce congestion on the Internet backbone networks by putting highly trafficked content closer to end users, thereby improving the user experience. It promotes the Open Internet Coalition's shared goal of keeping the Internet fast, open and accessible for all Americans."

Gigi Sohn, head of the Public Knowledge, stated in a release that "The effort to achieve an open and non-discriminatory Internet is alive and well in Washington, despite the unfortunate reporting" of the WSJ.

She argued that "Caching in no way is a part of the Net Neutrality issue of preventing discrimination by telephone and cable companies".

BSA Offers Policy Recommendations

12/11. The Business Software Alliance (BSA) released set of policy proposals titled "2009 Technology Policy Agenda". See also, BSA release.

This document restates many proposals long advocated by the BSA. The BSA seeks free trade, a permanent R&D tax credit, more federal support for STEM education, a federal data breach standard, patent reform, and more vigorous government enforcement of intellectual property rights.

The BSA advocates that the Obama administration and 111th Congress "Open foreign and online markets to American goods and services by expanding free trade".

The U.S. should "Redouble efforts through trade policy to ensure our trade partners vigorously enforce laws against software piracy. The BSA document further argues the the U.S. should "Clarify and modernize export control laws to ensure they do not create impediments to US trade".

It adds, "Modernize US ``deemed export´´ rules to ensure they do not unnecessarily impede the assistance talented foreign workers can provide to technology innovation in the United States".

Also, "Secure meaningful reforms to the H1-B Visa and Employment Based Green Card systems that will allow more highly trained and educated professionals to come to the United States".

The BSA also advocates "strengthening and making permanent the Research and Development Tax Credit". The Congress typically passes short term extensions, often after expiration of the previous extension.

The BSA also advocates that the U.S. "Reform outdated patent law by improving the quality of patents and restoring balance within the patent system".

Also, "Step up the vigorous enforcement of existing copyright and trademark laws, both domestically and internationally, with additional oversight and funding"

The BSA also proposes that the US "Establish a national standard requiring that consumers be notified when the security of their personal data has been compromised". This document does not expressly use the phrase "preempt existing state statutes".

The BSA also urges the US to "Fight against the growth of cyber crime by increasing law enforcement's domestic resources and capabilities, while forging stronger international partnerships"

Finally, the BSA want the federal government to "Fully fund efforts aimed at improving STEM education in elementary and secondary education".

The BSA membership includes major software companies, including Adobe, Apple, Autodesk, Avid, Bentley Systems, Borland, CA, Cadence Design Systems, Cisco Systems, CNC Software/Mastercam, Corel, CyberLink, Dell, EMC, HP, IBM, Intel, McAfee, Microsoft, Monotype Imaging, PTC, Quark, Quest Software, SAP, Siemens, Dassault Systemes SolidWorks, Sybase, Symantec, Synopsys, and The MathWorks.

Federal Circuit Rules in iLOR v. Google

12/11. The U.S. Court of Appeals (FedCir) issued its opinion [14 pages in PDF] in iLOR v. Google, a patent infringement case involving web page hyperlinking. The Court of Appeals affirmed the District Court's denial of iLOR's motion for a preliminary injunction.

iLOR is the holder of U.S. Patent No. 7,206,839, titled "Method for adding a user selectable function to a hyperlink". iLOR filed a complaint in U.S. District Court (EDKent) against Google alleging patent infringement.

The District Court granted Google's motion for summary judgment of noninfringement and denied iLOR's motion for preliminary injunction. The Court of Appeals held that the District Court correctly construed the claim, and affirmed the denial of the preliminary injunction.

This case is iLOR LLC v. Google, Inc., U.S. Court of Appeals for the Federal Circuit, App. Ct. No. 2008-1178, an appeal from the U.S. District Court for the Eastern District of Kentucky, D.C. No. 5:07-CV-109, Judge Joseph Hood presiding.

Federal Circuit Affirms in Netcraft v. eBay and PayPal

12/9. The U.S. Court of Appeals (FedCir) issued its opinion [16 pages in PDF] in Netcraft v. eBay and PayPal, a patent infringement case involving internet billing methods.

Netcraft is the holder of U.S. Patent No. 6,351,739 titled "Internet billing method" and U.S. Patent No. 6,976,008 , also titled "Internet billing method". Netcraft filed a complaint in U.S. District Court (WDWisc) against eBay and PayPal alleging patent infringement.

The District Court granted summary judgment of non-infringement to eBay and PayPal. Netcraft brought the present appeal. The Court of Appeals affirmed.

This case is Netcraft Corporation v. eBay, Inc. and PayPal, Inc., U.S. Court of Appeals for the Federal Circuit, App. Ct. No. 2008-1263, an appeal from the U.S. District Court for the Western District of Wisconsin, D.C. No. 3:07-CV-00254, Judge Barbara Crabb presiding.

In This Issue

This issue contains the following items:
 • FCC Cancels December 18 Meeting
 • Google and Network Neutrality Proponents Defend Edge Caching and Colocation Agreements
 • BSA Offers Policy Recommendations
 • Federal Circuit Rules in iLOR v. Google
 • Federal Circuit Affirms in Netcraft v. eBay and PayPal

FCC Cancels December 18 Meeting

12/12. The Federal Communications Commission (FCC) published a notice [PDF] in its web site stating that it has cancelled its event titled "Open Meeting" scheduled for December 18, 2008. However, this notice adds that "items will remain on circulation for the Commissioners to vote".

This cancellation follows receipt by the FCC of a letter from Sen. Jay Rockefeller (D-WV) and Rep. Henry Waxman (D-CA), who will be the Chairman of the Senate Commerce Committee (SCC) and House Commerce Committee (HCC) in the 111th Congress.

The incoming Chairman are both Democrats, as is President elect Obama. The current FCC Chairman, Kevin Martin, a Republican, has not yet announced his resignation. Three of five Commissioners are currently Republicans. However, the Committee Chairmen can anticipate a new Chairman, appointed by President elect Obama, and confirmed by Sen. Rockefeller's SCC, and a new Commission with three Democrats.

FCC spokesman Robert Kenny stated in a release that "We received the letter from Senator Rockefeller and Congressman Waxman today and spoke with other offices.  In light of the letter, it does not appear that there is consensus to move forward and the agenda meeting has been canceled. The items will remain on circulation and the Commissioners can still vote on them."

To the extent that the FCC does not need to hold meetings to adopt rules or take other actions, this cancellation may not impact some of the items that had been on the agenda.

See also, stories titled "FCC Releases December 18 Meeting Agenda" in TLJ Daily E-Mail Alert No. 1,872, December 12, 2008, and "Martin Discusses FCC Agenda" and "Martin Wants FCC to Adopt Free Wireless Broadband Order" in TLJ Daily E-Mail Alert No. 1,867, December 4, 2008.

The FCC does not conduct business at meetings. Rather, it holds ceremonial events about once per month to lend that appearance that it does hold, and conduct business at, meetings. It does not receive testimony or documents at these meetings. Nor does it debate or discuss items. Nor does it draft, or amend orders, reports or other items at these meetings. The FCC does conduct votes on a few items at these meetings. However, when the FCC does adopt an item at a meeting, it does not release the item. Indeed, it often adopts a non-existent document. For example, the FCC adopted a video competition report in November of 2007. It has not yet released the report, if it in fact it exists.

Federal statute, at 5 U.S.C. § 552b, requires that the FCC and other federal agencies must hold their meetings in public, and that they must give notice "at least one week before the meeting, of the time, place, and subject matter of the meeting".

The statute further provides that "deliberations of at least the number of individual agency members required to take action on behalf of the agency" constitutes a meeting.

The FCC's response to this statute is not to hold public meetings, but rather to use other means to reach decisions. While the FCC Commissioners cannot by law meet in secret, nothing in the statute prohibits them from conducting deliberations through a series of communications relayed through their staff members, or other means.

Hypothetically, even without any further meetings, the FCC court adopt orders pertaining to the AWS-3 band and other matters.

Washington Tech Calendar
New items are highlighted in red.
Tuesday, December 16

The House will not meet. It has adjourned until January 3, 2009, subject to recall by the Speaker of the House. See, HConRes 440.

The Senate will meet in pro forma session only.

10:00 AM - 5:00 PM. The National Science Foundation's (NSF) Advisory Committee for Cyberinfrastructure will meet. See, notice in the Federal Register, November 13, 2008, Vol. 73, No. 220, at Page 67212. Location: NSF, Room 1235, 4201 Wilson Blvd., Arlington, VA.

12:00 - 1:30 PM. The DC Bar Association (DCBA) will host a panel discussion titled "CFIUS and FINSA: Comparisons With Other Countries' Investment Review Mechanisms". The speakers will be Johann Leaman (Department of Treasury), Michael Snarr (Baker Hostetler), Stephen Canner (U.S. Council for International Business), Matthew Edwards ( Department of Commerce). The price to attend ranges from $10 to $30. For more information, contact 202-626-3463. See, notice. The DCBA has a record of excluding persons from its events. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

12:30 - 2:00 PM. The Federal Communications Bar Association's (FCBA) International Telecommunications Practice Committee will host a brown bag lunch titled "Results of the 2008 Internet Governance Forum (IGF) in India and End of the Presidential Administration Telecoms Issues". The speaker will be David Gross (Department of State). For more information, contact Susan O'Connell at susan dot o'connell at fcc dot gov or Troy Tanner at troy dot tanner at bingham dot com. RSVP by December 12 to Jennifer Ullman at Jennifer dot ullman at verizon dot com. Location: Verizon, 5th floor, Suite 400 West, 1300 I St., NW.

Deadline to submit to the Federal Communications Commission (FCC) oppositions to the petition for reconsideration [PDF] filed on November 17, 2008, by the National Association of Broadcasters (NAB) and the Association for Maximum Service Television in the FCC's proceeding titled "In the Matter of Carriage of Digital Television Broadcast Signals: Amendment to Part 76 of the Commission's Rules" and numbered CS Docket No. 98-120. See, notice in the Federal Register, December 2, 2008, Vol. 73, No. 232, at Page 73327.

Wednesday, December 17

9:00 - 10:30 AM. The Information Technology and Innovation Foundation (ITIF) will host a panel discussion titled "Complex Economies & Simple Economics: How New Research Is Challenging Conventional Economic Policy". The speakers will be Rob Atkinson (ITIF), Marc Berejka (Microsoft), Rick Whitt (Google), and Robert Axtell (George Mason University). A light breakfast will be served. Location: ITIF, Suite 200, 1250 Eye St., NW.

12:15 - 1:30 PM. The Federal Communications Bar Association's (FCBA) Young Lawyers Committee will host a brown bag lunch for planning purposes. For more information, contact Tarah Grant at tsgrant hhlaw dot com or 703-610-6155 or Cathy Hilke at chilke at wileyrein dot com or 202-719-7418. RSVP to Christy Hammond at chammond at wileyrein dot com. Location: Wiley Rein, 10 East Conference Center, 1750 K St., NW.

Effective date of the U.S. Patent and Trademark Office's (USPTO) new rules governing the conduct of individuals registered to practice before the USPTO. These new rules include an annual patent practitioner maintenance fee. See, notice in the Federal Register, November 17, 2008, Vol. 73, No. 222, at Pages 67750-67759.

Thursday, December 18

CANCELLED. 10:00 AM. The Federal Communications Commission (FCC) may hold a meeting. See, possible agenda [PDF]. See also, stories titled "Martin Wants FCC to Adopt Free Wireless Broadband Order" and "Martin Discusses FCC Agenda" in TLJ Daily E-Mail Alert No. 1,867, December 4, 2008, and story titled "FCC Releases December 18 Meeting Agenda" in TLJ Daily E-Mail Alert No. 1,872, December 12, 2008. Location: FCC, Commission Meeting Room, 445 12th St., SW. See, notice [PDF] of cancellation.

5:00 PM. Deadline to submit to the National Telecommunications and Information Administration (NTIA) certain applications for planning and construction grants for public telecommunications facilities under the Public Telecommunications Facilities Program (PTFP). See, original notice in the Federal Register, October 20, 2008, Vol. 73, No. 203, at Pages 62258-62259; further notice in the Federal Register, December 9, 2008, Vol. 73, No. 237, at Page 74709; and the FCC's DTS Report and Order [56 pages in PDF], adopted on November 3, 2008, and released on November 7, 2008, FCC 08-256 in MB Docket No. 05-312.

Friday, December 19

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding draft SP 800-102 [30 pages in PDF] titled "Recommendation for Digital Signature Timeliness".

Extended deadline to submit nominations to the Federal Communications Commission's (FCC) Wireline Competition Bureau (WCB) for six different positions on the Board of Directors of the Universal Service Administrative Company (USAC). See, original FCC notice [PDF] and FCC notice of extension. These items are DA 08-2487 and DA 08-2651 in CC Docket Nos. 96-45 and 97-21.

Sunday, December 21

Hanukhah begins at sundown.

Monday, December 22

Deadline to submit comments to the U.S. Patent and Trademark Office (USPTO) in response to its request for comments regarding information collection associated with its use of Public Key Infrastructure (PKI) technology to protect the integrity and confidentiality of information submitted to the USPTO. See, notice in the Federal Register, October 23, 2008, Vol. 73, No. 206, at Pages 63134-63135.

EXTENDED TO FEBRUARY 20, 2009. Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding the Rural Cellular Association's (RCA) May 20, 2008, petition for rulemaking [25 pages in PDF] regarding "the widespread use and anticompetitive effects of exclusivity arrangements between commercial wireless carriers and handset manufacturers" and "rules that prohibit such arrangements". See, notice in the Federal Register, October 23, 2008, Vol. 73, No. 206, at Pages 63127-63128. This proceeding is RM No. 11497. See, FCC notice of extension [PDF], and notice of extension in the Federal Register, December 12, 2008, Vol. 73, No. 240, at Pages 75629-75630.

Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding the Rural Telecommunications Group's (RTG) July 16, 2008, petition for rulemaking [22 pages in PDF] regarding imposing a spectrum cap for commercial terrestrial spectrum. The RTG requests that the FCC write rules that provide that no licensee of commercial terrestrial wireless spectrum below 2.3 GHz, including all parties under common control, should be permitted to have an attributable interest in more than 110 megahertz of licensed spectrum with any significant overlap in any county. See, notice in the Federal Register, October 23, 2008, Vol. 73, No. 206, at Pages 63128-63129. This proceeding is RM No. 11498.

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